Care proceedings are often complex and lengthy; an experienced solicitor should be instructed at the earliest opportunity. The outline below is a very brief overview of the procedure only.
The Children Act 1989 introduced the concept of ‘significant harm’ to help local authorities protect children by giving them the power (and sometimes the obligation) to step in and investigate whether or not a child is suffering or likely to suffer ‘significant harm’. They will make enquiries to decide what action is in the child’s best interests in order to ensure their protection.
When a non-accidental injury is suspected the local authority will use their powers under the Children Act 1989 to protect the child in question and any siblings from potential future harm and can issue emergency applications to ensure the children are looked after by someone else (this could be a family member or foster carer). The local authority will present their findings to the court who will ultimately decide whether there are reasonable grounds for suspecting a child is suffering or is likely to suffer, significant harm. Where the court decides that there are reasonable grounds, an interim care order is likely to be made. An interim care order enables the Local Authority to share parental responsibility for the child and therefore make decisions as to where they should live whilst the court proceedings are ongoing.
A Children’s Guardian from CAFCASS will be appointed by the court to represent the rights and interests of the child. They will consider the child’s wishes in the light of their age and understanding and help decide what arrangements is in their best interest.
Usually independent medical experts will be instructed to assist the court in establishing the cause of the injury. The type of expert to be instructed will depend on the nature of the injuries.
Evidence will be gathered from numerous sources (for example the police, medical records, character references, statements, etc).
The Judge will need to determine if the injuries are non-accidental and if so, who the perpetrator is or whether there is a pool of perpetrators (more than one person). This will be done by holding a fact finding hearing where the court hears evidence from relevant people including the medical experts where necessary and the parents.
In the family courts, decisions are made using the balance of probability. The Judge will therefore have to be 51% sure that an injury was non-accidental in nature.
If a Judge decides an injury is non-accidental and has determined who the perpetrator(s) is, then a further stage, the welfare stage, is arranged (often several months after the fact finding hearing) to determine where the child should live. To help them do this, the court may appoint further experts to carry out psychological or risk assessments.
If the Judge decides that the injuries were caused by a medical condition or as the result of an accident, the proceedings will end here.
Whilst it is vital that you obtain legal advice early on in your matter, it is equally as important to instruct a solicitor with the right knowledge and expertise for your circumstances. Not all family lawyers practice regularly in care work and not all care lawyers are experienced in non-accidental injury work.